Thank you. If we feel we need them, we will ask you and the government to provide the additional updating of what's happened to this petition. Thank you both. Thank you. Okay, next case is number 061234 in Ray Omega SA, Mr. Wagner. Good afternoon, Your Honors. May I please the Court? Omega appeals the trademark channel appeal board decision affirming the trademark examiner's final refusal to accept Omega's application to register the Mark Aqua Terror for a variety of goods in class 14. These goods in their entirety are jewelry. But there's only one good issue, right? That's correct, Your Honor. However, the recitation of goods is in fact relevant to a determination of the issues. Well, it would help me if you would explain something to me, which I don't understand
. As I read your brief, you're saying that as used in this application, chronographs means watches, is that right? That's correct, Your Honor. And why if chronographs means watches, did you object to the examining attorney's proposal that you amended to say that explicitly? Because your Honor, as the TTAB briefs make clear, for over 40 years there has been a practice in the application of the rules and regulations of the PTO in which chronographs is not indefinite. In fact, it is reasonably particular. Well, whether or not I don't understand why you said you would not make the change that the examiner told you to say, you should make when you seem to be telling us that the change conforms just to the facts. I mean, maybe the examiner was being too demanding in requesting this specific change. But so what? What's the difference? Why shouldn't it be made unless, which some suspicious people might think, that you really hoped that if you could get this word, for chronographs listed without any qualifications, there might be some other types of chronographs that you would want to use the mark on. But that would not be an unreasonable suspicion where you seem, I could understand your argument if you said that chronographs is not limited to watches. But as I read your brief, you're saying chronographs is the same thing as watches. And that I find somewhat peculiar because the description of the goods in your first amended application includes watches. That's correct, Your Honor. In fact, I don't understand why if it includes watches, you also add chronographs unless chronographs mean something other than watches, but you tell us in your brief that that's what it means
. Your Honor, chronographs are a type of watch. And in fact, inner idea of goods as amended, it states chronographs comma, chronometers comma watches and parts thereof. In fact, the recitation of goods makes it clear that the chronographs is merely a type of watch. Judge Friedman says, you why should you care and why should we care? And if I understand the answer to that, it's in your reply, where you can answer is you have other registrations where you got the word chronograph through. And you're afraid that somebody's going to challenge those as being involved. That's correct. Yes, and in fact, it's not just us, Your Honor. I refer now to the registrations of age 60 to 116, where Omega has maintained registration since 1953, for over half a century for chronographs standing alone in class 14. Is every watch a chronograph? No, Your Honor. It is. No
. A chronograph is a watch. But every chronograph is a watch. Every chronograph, every watch containing a chronograph is obviously watch and a chronograph. Now, for example, I have a wristwatch, which in addition to recording the time also states the date and the day of the week. Is that a chronograph? It is a watch containing the chronograph that is correct. But the date of the week is not a chronograph function. A chronograph has a specified meaning. And getting back to Judge Dijk's comments, we are not the only one to maintain registrations over these years. IWC, rotor, diesel, ebberhard, chrono, Swiss, all famous brands that the court is probably familiar with, maintains these registrations for chronographs standing alone in class 14. So what's the risk? What's going to happen? Does somebody's going to challenge that on the ground that the description of the goods isn't sufficient? Does that invalidate the trademark? Well, Your Honor, we have a series of registrations. And when we can force those registrations, the idea of goods is scrutinized
. And if we have registrations where it says chronographs standing alone, and in another word says chronographs for use as watches, then it question arises whether or not those two things are indeed different. And there is no reason for- What's the risk here? Help me understand what the risk is. With respect to these other trademarks where the word chronograph was registered. Is somebody's going to challenge that trademark and say it's invalid? Is that's what's going to happen? That's correct, Your Honor. That is a valid risk that we- The entire registration would fall through registration from the 50s because there's been an action that appears through somehow redefine chronograph. That's correct, Your Honor. That the entire registration could be challenged as being- As containing an indefinite description of goods. And Your Honor, the issue here- That's the trademark law. If you've got a class of goods as one sees for trademarks, what have things you're mentioning? Let's say you're trademarks for clothing and you're no longer making stockings. And you've got stockings in there. And you've stopped making stockings for use with your trademark
. Mark would say it's- I don't know, nothing springs to mind, but trademark for goods. That the whole thing, all shooting matches now, legitimately subject to challenge and invalidation. That's correct, Your Honor. Cancelation. If the registration is renewed without a change to that description, then the- Especially the most recent cases of this poor- Have a do not just said something very interesting. So if your 1950s trademark is challenged, the one that lists chronographs along with other watches, all you'd have to do is amend it to say chronographs for watches. You cannot simply amend it anytime. You can only delete goods from an application. So you can amend it with the approval of the trademark office guarantee? I don't believe so. Not an existing registration. A new application for registration must be filed, which of course creates problems with priority gates
. We have just been granted on September 19th, 2006, another registration, including a orological instrument. Now this is significant in this case. It's not in the record because it just happened. But the original idea of goods that was rejected by the examiner as indefinite was formed among other things, forological instruments. And we amended that to make it more definite by adding chronographs, chronometers, and watches, and so forth in this description. We amended it to that description because that is what we and all of the other registrations historically have had in the identification of goods. What do you tell us? The examiner here or the board was arbitrary, picky, or unfair, or that there are legitimate legal risks. Both, Your Honor. As recently as October 10th, 2006, the office registered registration number 0857568 for the March LB Ademars 1811. For chronographs in class 14, standing alone. That is not in the record
. And I'm happy to submit that after the fourth class. But don't you think the examining attorney has some substantial discretion to determine the degree of specificity required in describing the goods to which the mark will be attached? Yes, Your Honor. There is discretion which is afforded. And in fact, we need to be aware of this. Why was this an abuse of discretion? Because you say it's clear. Yes, Your Honor. And in fact, the examining attorney didn't think it was so clear. Well, the examining attorneys throughout the last half century and more have found it to be clear that TTAB decision in this case from which we are appealing states that the office policy must change when there is cause for change. This legal conclusion is not an incorrect but it has no basis in any fact. That appears in the record. The board didn't think the examiner had acted arbitrarily
. What could persistly do that? The board actually specifically identified that the examiner had departed from the historical application and interpretation of the rules and regulations. My question is the board said that the examiner had acted arbitrarily of the person. This is the board in effect. So that even though the examiner may have departed from some of the prior registrations, nevertheless, the examiner acted within the bounds of his authority. The reason that the board did say that was because it recognized that there was a change that it was now adopting. That change is an inconsistent application of the rules and regulations without cause. That is an abuse of discretion by the examiner and it is a reversible decision by the TTAB. What case holds the description of goods that is unclear in reality? What is the leading case? I would have to get to, because we didn't brief that issue, I would have to get to that. Well, Ben, good if you can. That seems to be what this is all about. I think we'd be glad to receive some kind of briefing I had compared with the last case
. This is, I think, a significant issue, although I am going to ask the PTO council if this is really something that has to be resolved by the Federal Circuit as well. But I think we'd be glad to hear from both sides on this point. I appreciate that opportunity and I'll also provide you with the recent registrations that I mentioned where, in fact, the policy of the PTO has not changed. And for some reason, the TTAB in this instance identified that the examiner departed from traditional application of the rules and yet affirmed his decision in any event. This is a significant problem for Omega. We have numerous registrations that recite chronographs in class 14 standing alone. And there's no reason for any departure. There's none in the record and there is none that can be presented here today. In fact, the only change that has occurred in the last half century that is of any consequence to this is the United States' accession to the Midrida Protocol, which we mentioned in our briefs, requires the office to hear more so to the International NICE Convention of Identification of Goods in which chronographs stands alone. And that was rejected by the PTO and that too was erroneous. In anything that has occurred over the last half century that being the change, militates in favor of Omega's position and the substantiation of the numerous registrations that we hold as well as all the others that I mentioned
. I will let you hear from the office to leave you enough time for rebuttal. Thank you. Mr. Walsh. It blows the court. When a party starts selling goods in market on the associate, a trademark or a brand name with those goods, they create trademark rights that are created by the use. The rights they create and on how they use in market, party themselves watches, acquires trademark rights associating that mark with watches, not necessarily acquiring any rights with that Mark Associated with Scientific Recording Instruments. Over time. But the word chronograph is used. It's a fancy word for a fancy watch, isn't it? There's nothing to do with scientific instruments. What's your view of Mr. Walsh's point that this is a usage that has not caused anybody any problem for decades and has been relied on by registrants in the watch business for years and just all of a sudden some sort of munkering is being thrown into this nomenclature. Two things, one might suspect that there aren't any registrations for chronographs that say for use as watches, but in fact there are over 400 that use exactly that language. One might suspect that there aren't any registrations that use chronographs for use as specialized recording apparatus, but in fact there are hundreds of them. So you're saying inconsistency is widespread. No, I'm saying that in fact the practice is not to just simply use the word chronographs. But do they not have registrations that just use the word chronograph? There are some. So are those at risk? Could somebody challenge those and say well, chronograph is not sufficiently descriptive of the goods. Therefore your trademark for such and such for the class of goods chronograph is inbound. It's doubtful what that's going to happen because the person who has the rights has the rights associated with the use they've been making. The registration is a registration of that mark. The registration doesn't give them any trade mock rights
. Walsh's point that this is a usage that has not caused anybody any problem for decades and has been relied on by registrants in the watch business for years and just all of a sudden some sort of munkering is being thrown into this nomenclature. Two things, one might suspect that there aren't any registrations for chronographs that say for use as watches, but in fact there are over 400 that use exactly that language. One might suspect that there aren't any registrations that use chronographs for use as specialized recording apparatus, but in fact there are hundreds of them. So you're saying inconsistency is widespread. No, I'm saying that in fact the practice is not to just simply use the word chronographs. But do they not have registrations that just use the word chronograph? There are some. So are those at risk? Could somebody challenge those and say well, chronograph is not sufficiently descriptive of the goods. Therefore your trademark for such and such for the class of goods chronograph is inbound. It's doubtful what that's going to happen because the person who has the rights has the rights associated with the use they've been making. The registration is a registration of that mark. The registration doesn't give them any trade mock rights. Whatever their rights are, they in here and their use. And the second part of my antitutional human's question is that over time markets develop, markets remafond, they branch out. Let's imagine that 40 years ago perhaps IBM registered a mark for software. And nowadays people register marks for software for designing buildings, software for games, software for electric circuits. All more specific because that market has been probably created in a more than 50 years ago. But they couldn't use the IBM mark. Whatever qualifications they might be among different kinds of software they couldn't use the mark. And even when IBM applies now for new registrations, it also specifies the goods more specifically. So the old marks are not in danger when a market spreads out and creates new products, all of which might fall under the heading like chronographs but be completely different things. And the only thing with that situation, there's no change in the market. I mean they're saying that the word chronographs was used to mean watch earlier in earlier registrations that the word chronograph has been used to mean watch for generations
. Whatever their rights are, they in here and their use. And the second part of my antitutional human's question is that over time markets develop, markets remafond, they branch out. Let's imagine that 40 years ago perhaps IBM registered a mark for software. And nowadays people register marks for software for designing buildings, software for games, software for electric circuits. All more specific because that market has been probably created in a more than 50 years ago. But they couldn't use the IBM mark. Whatever qualifications they might be among different kinds of software they couldn't use the mark. And even when IBM applies now for new registrations, it also specifies the goods more specifically. So the old marks are not in danger when a market spreads out and creates new products, all of which might fall under the heading like chronographs but be completely different things. And the only thing with that situation, there's no change in the market. I mean they're saying that the word chronographs was used to mean watch earlier in earlier registrations that the word chronograph has been used to mean watch for generations. And they're worried that those trade marks are going to be held in Val. I'm not sure what your answer is to that. I mean do they have a real risk or don't they? I don't think they have any real risk that argument wasn't raised because because their rights in the mark have to do with how they were using it. And their registration is not endangered if they registered something 40 years ago and they're still using it that way. When they apply for a new registration, what they're asking is what we're asking is that they identify the goods more consistently. And for example, in the the knees classification I just mentioned. And I noticed at the very end of the board's opinion, the board says we consider the officers position that chronographs per se is an indefinite term to be correct. What does that holding? I take it that's the holding of the board in this case. What does that do to all these other registrations? They all now contain an indefinite term, right? Well, I don't think it's going to hurt those registrations or the parties who have them in their lives. It's going to hurt. I'm going forward since 1993 when the knees classifications were modified to indicate that from the right
. And they're worried that those trade marks are going to be held in Val. I'm not sure what your answer is to that. I mean do they have a real risk or don't they? I don't think they have any real risk that argument wasn't raised because because their rights in the mark have to do with how they were using it. And their registration is not endangered if they registered something 40 years ago and they're still using it that way. When they apply for a new registration, what they're asking is what we're asking is that they identify the goods more consistently. And for example, in the the knees classification I just mentioned. And I noticed at the very end of the board's opinion, the board says we consider the officers position that chronographs per se is an indefinite term to be correct. What does that holding? I take it that's the holding of the board in this case. What does that do to all these other registrations? They all now contain an indefinite term, right? Well, I don't think it's going to hurt those registrations or the parties who have them in their lives. It's going to hurt. I'm going forward since 1993 when the knees classifications were modified to indicate that from the right. Let me ask you a different question. Suppose if we were to affirm this decision, a competitor of this company comes in and says to the board, it's now been determined that their registration contains an indefinite term. And since the registration is no longer be changed, we ask you to declare that registration invalid, at least as applied to chronographs. What does the office do? Would you permit it to be, can you change these old registrations to add the qualification that was added? The new general would require this registration. Well, I'm not exactly sure if they can change them outside of the time when they're renewing the registration. When they're renewing, they can limit the goods to more narrowly, say, chronographs for use as watches. I'm not sure if there are other provisions to do that. But I'm also not aware of any case where someone's registration has fallen because it used the term that was acceptable at the time. The term chronographs was recognized in 1993 as being ambiguous in the NIS classification. We've discussed this issue in our brief where even the NIS classification says the chronograph term is ambiguous and wants to clarify the brackets of the word watches or with brackets the word recording apparatus. So those kinds of developments don't necessarily undermine the registrations that people have had before
. Let me ask you a different question. Suppose if we were to affirm this decision, a competitor of this company comes in and says to the board, it's now been determined that their registration contains an indefinite term. And since the registration is no longer be changed, we ask you to declare that registration invalid, at least as applied to chronographs. What does the office do? Would you permit it to be, can you change these old registrations to add the qualification that was added? The new general would require this registration. Well, I'm not exactly sure if they can change them outside of the time when they're renewing the registration. When they're renewing, they can limit the goods to more narrowly, say, chronographs for use as watches. I'm not sure if there are other provisions to do that. But I'm also not aware of any case where someone's registration has fallen because it used the term that was acceptable at the time. The term chronographs was recognized in 1993 as being ambiguous in the NIS classification. We've discussed this issue in our brief where even the NIS classification says the chronograph term is ambiguous and wants to clarify the brackets of the word watches or with brackets the word recording apparatus. So those kinds of developments don't necessarily undermine the registrations that people have had before. I should say take that risk when you say don't necessarily. I hear a lot of hedging in what you tell us, but I think you must hedge because it hasn't been litigated. I'm not aware of that. Omega doesn't want to be a test case with a valuable trademark to find that they're going to lose all their old valuable trademarks because they've got the word chronographed. Well, first I don't think they're modifying the goods in this application. Does anything to undermine a separate registration? Is this a legal commitment on the part of the office or is this your personal opinion? Apparently Mr. Wagner on behalf of his client is concerned. There are no this is this individual application as it stands can easily say chronographs to use as watches and it doesn't hurt at all any of the prior registrations where they have chronographs where their goods will watch at the same time. Am I correct in my understanding that under this decision if this decision is affirmed what happens is they have a choice. They can either amend the application as the examining attorney requested or they can go ahead with the application without the word chronograph. Basically the effect of the decision of the examiner saying you have to make this change and their refusal would change it is as though the word chronograph was struck from the application
. I should say take that risk when you say don't necessarily. I hear a lot of hedging in what you tell us, but I think you must hedge because it hasn't been litigated. I'm not aware of that. Omega doesn't want to be a test case with a valuable trademark to find that they're going to lose all their old valuable trademarks because they've got the word chronographed. Well, first I don't think they're modifying the goods in this application. Does anything to undermine a separate registration? Is this a legal commitment on the part of the office or is this your personal opinion? Apparently Mr. Wagner on behalf of his client is concerned. There are no this is this individual application as it stands can easily say chronographs to use as watches and it doesn't hurt at all any of the prior registrations where they have chronographs where their goods will watch at the same time. Am I correct in my understanding that under this decision if this decision is affirmed what happens is they have a choice. They can either amend the application as the examining attorney requested or they can go ahead with the application without the word chronograph. Basically the effect of the decision of the examiner saying you have to make this change and their refusal would change it is as though the word chronograph was struck from the application. The application will go forward but it will not include chronographs. That would be they could file a second application if this were affirmed they could file an application and just not use the word. If this decision were affirmed yes they would have to file a new application without the word chronograph. Or with the call of the case. Could they now request amendment of all the other applications to make the same change? I'm not sure if the answer to that. I think they would... Well if you can't answer it. Yes, don't try. Except we're told that you can't amend
. The application will go forward but it will not include chronographs. That would be they could file a second application if this were affirmed they could file an application and just not use the word. If this decision were affirmed yes they would have to file a new application without the word chronograph. Or with the call of the case. Could they now request amendment of all the other applications to make the same change? I'm not sure if the answer to that. I think they would... Well if you can't answer it. Yes, don't try. Except we're told that you can't amend. I think you can amend the goods and again we haven't breathed that issue when that if we can address that in the supplemental briefing. You could do that perhaps. It would be helpful that the consequences of this decision are father reaching that I think was apparent from the briefing. I think it would indeed be helpful if both of you could pursue these issues that seem so uncertain and exchange your briefs before you filed them with us. So that you can argue with each other if that's required. And let's see how much time would be appropriate. These are big issues perhaps. Can we wait a month? Sure. I'm giving..
. I think you can amend the goods and again we haven't breathed that issue when that if we can address that in the supplemental briefing. You could do that perhaps. It would be helpful that the consequences of this decision are father reaching that I think was apparent from the briefing. I think it would indeed be helpful if both of you could pursue these issues that seem so uncertain and exchange your briefs before you filed them with us. So that you can argue with each other if that's required. And let's see how much time would be appropriate. These are big issues perhaps. Can we wait a month? Sure. I'm giving... Yeah. That's a judge I said we should have a page limit also. Okay, a month and ten pages. Thank you. And perhaps that will get us through to the next stage. We may or may not ask you to come back for further argument. Depending on how clear it seems at the time. If the office meanwhile can work it out internally, we might all be very pleased with that. Thank you, Your Honor. Is there anything else that needs to be said? You don't need to tell us anything else at this stage I think. All right
. Yeah. That's a judge I said we should have a page limit also. Okay, a month and ten pages. Thank you. And perhaps that will get us through to the next stage. We may or may not ask you to come back for further argument. Depending on how clear it seems at the time. If the office meanwhile can work it out internally, we might all be very pleased with that. Thank you, Your Honor. Is there anything else that needs to be said? You don't need to tell us anything else at this stage I think. All right. Then the case is not under submission. We will wait to hear from you and we'll see what happens next.
Thank you. If we feel we need them, we will ask you and the government to provide the additional updating of what's happened to this petition. Thank you both. Thank you. Okay, next case is number 061234 in Ray Omega SA, Mr. Wagner. Good afternoon, Your Honors. May I please the Court? Omega appeals the trademark channel appeal board decision affirming the trademark examiner's final refusal to accept Omega's application to register the Mark Aqua Terror for a variety of goods in class 14. These goods in their entirety are jewelry. But there's only one good issue, right? That's correct, Your Honor. However, the recitation of goods is in fact relevant to a determination of the issues. Well, it would help me if you would explain something to me, which I don't understand. As I read your brief, you're saying that as used in this application, chronographs means watches, is that right? That's correct, Your Honor. And why if chronographs means watches, did you object to the examining attorney's proposal that you amended to say that explicitly? Because your Honor, as the TTAB briefs make clear, for over 40 years there has been a practice in the application of the rules and regulations of the PTO in which chronographs is not indefinite. In fact, it is reasonably particular. Well, whether or not I don't understand why you said you would not make the change that the examiner told you to say, you should make when you seem to be telling us that the change conforms just to the facts. I mean, maybe the examiner was being too demanding in requesting this specific change. But so what? What's the difference? Why shouldn't it be made unless, which some suspicious people might think, that you really hoped that if you could get this word, for chronographs listed without any qualifications, there might be some other types of chronographs that you would want to use the mark on. But that would not be an unreasonable suspicion where you seem, I could understand your argument if you said that chronographs is not limited to watches. But as I read your brief, you're saying chronographs is the same thing as watches. And that I find somewhat peculiar because the description of the goods in your first amended application includes watches. That's correct, Your Honor. In fact, I don't understand why if it includes watches, you also add chronographs unless chronographs mean something other than watches, but you tell us in your brief that that's what it means. Your Honor, chronographs are a type of watch. And in fact, inner idea of goods as amended, it states chronographs comma, chronometers comma watches and parts thereof. In fact, the recitation of goods makes it clear that the chronographs is merely a type of watch. Judge Friedman says, you why should you care and why should we care? And if I understand the answer to that, it's in your reply, where you can answer is you have other registrations where you got the word chronograph through. And you're afraid that somebody's going to challenge those as being involved. That's correct. Yes, and in fact, it's not just us, Your Honor. I refer now to the registrations of age 60 to 116, where Omega has maintained registration since 1953, for over half a century for chronographs standing alone in class 14. Is every watch a chronograph? No, Your Honor. It is. No. A chronograph is a watch. But every chronograph is a watch. Every chronograph, every watch containing a chronograph is obviously watch and a chronograph. Now, for example, I have a wristwatch, which in addition to recording the time also states the date and the day of the week. Is that a chronograph? It is a watch containing the chronograph that is correct. But the date of the week is not a chronograph function. A chronograph has a specified meaning. And getting back to Judge Dijk's comments, we are not the only one to maintain registrations over these years. IWC, rotor, diesel, ebberhard, chrono, Swiss, all famous brands that the court is probably familiar with, maintains these registrations for chronographs standing alone in class 14. So what's the risk? What's going to happen? Does somebody's going to challenge that on the ground that the description of the goods isn't sufficient? Does that invalidate the trademark? Well, Your Honor, we have a series of registrations. And when we can force those registrations, the idea of goods is scrutinized. And if we have registrations where it says chronographs standing alone, and in another word says chronographs for use as watches, then it question arises whether or not those two things are indeed different. And there is no reason for- What's the risk here? Help me understand what the risk is. With respect to these other trademarks where the word chronograph was registered. Is somebody's going to challenge that trademark and say it's invalid? Is that's what's going to happen? That's correct, Your Honor. That is a valid risk that we- The entire registration would fall through registration from the 50s because there's been an action that appears through somehow redefine chronograph. That's correct, Your Honor. That the entire registration could be challenged as being- As containing an indefinite description of goods. And Your Honor, the issue here- That's the trademark law. If you've got a class of goods as one sees for trademarks, what have things you're mentioning? Let's say you're trademarks for clothing and you're no longer making stockings. And you've got stockings in there. And you've stopped making stockings for use with your trademark. Mark would say it's- I don't know, nothing springs to mind, but trademark for goods. That the whole thing, all shooting matches now, legitimately subject to challenge and invalidation. That's correct, Your Honor. Cancelation. If the registration is renewed without a change to that description, then the- Especially the most recent cases of this poor- Have a do not just said something very interesting. So if your 1950s trademark is challenged, the one that lists chronographs along with other watches, all you'd have to do is amend it to say chronographs for watches. You cannot simply amend it anytime. You can only delete goods from an application. So you can amend it with the approval of the trademark office guarantee? I don't believe so. Not an existing registration. A new application for registration must be filed, which of course creates problems with priority gates. We have just been granted on September 19th, 2006, another registration, including a orological instrument. Now this is significant in this case. It's not in the record because it just happened. But the original idea of goods that was rejected by the examiner as indefinite was formed among other things, forological instruments. And we amended that to make it more definite by adding chronographs, chronometers, and watches, and so forth in this description. We amended it to that description because that is what we and all of the other registrations historically have had in the identification of goods. What do you tell us? The examiner here or the board was arbitrary, picky, or unfair, or that there are legitimate legal risks. Both, Your Honor. As recently as October 10th, 2006, the office registered registration number 0857568 for the March LB Ademars 1811. For chronographs in class 14, standing alone. That is not in the record. And I'm happy to submit that after the fourth class. But don't you think the examining attorney has some substantial discretion to determine the degree of specificity required in describing the goods to which the mark will be attached? Yes, Your Honor. There is discretion which is afforded. And in fact, we need to be aware of this. Why was this an abuse of discretion? Because you say it's clear. Yes, Your Honor. And in fact, the examining attorney didn't think it was so clear. Well, the examining attorneys throughout the last half century and more have found it to be clear that TTAB decision in this case from which we are appealing states that the office policy must change when there is cause for change. This legal conclusion is not an incorrect but it has no basis in any fact. That appears in the record. The board didn't think the examiner had acted arbitrarily. What could persistly do that? The board actually specifically identified that the examiner had departed from the historical application and interpretation of the rules and regulations. My question is the board said that the examiner had acted arbitrarily of the person. This is the board in effect. So that even though the examiner may have departed from some of the prior registrations, nevertheless, the examiner acted within the bounds of his authority. The reason that the board did say that was because it recognized that there was a change that it was now adopting. That change is an inconsistent application of the rules and regulations without cause. That is an abuse of discretion by the examiner and it is a reversible decision by the TTAB. What case holds the description of goods that is unclear in reality? What is the leading case? I would have to get to, because we didn't brief that issue, I would have to get to that. Well, Ben, good if you can. That seems to be what this is all about. I think we'd be glad to receive some kind of briefing I had compared with the last case. This is, I think, a significant issue, although I am going to ask the PTO council if this is really something that has to be resolved by the Federal Circuit as well. But I think we'd be glad to hear from both sides on this point. I appreciate that opportunity and I'll also provide you with the recent registrations that I mentioned where, in fact, the policy of the PTO has not changed. And for some reason, the TTAB in this instance identified that the examiner departed from traditional application of the rules and yet affirmed his decision in any event. This is a significant problem for Omega. We have numerous registrations that recite chronographs in class 14 standing alone. And there's no reason for any departure. There's none in the record and there is none that can be presented here today. In fact, the only change that has occurred in the last half century that is of any consequence to this is the United States' accession to the Midrida Protocol, which we mentioned in our briefs, requires the office to hear more so to the International NICE Convention of Identification of Goods in which chronographs stands alone. And that was rejected by the PTO and that too was erroneous. In anything that has occurred over the last half century that being the change, militates in favor of Omega's position and the substantiation of the numerous registrations that we hold as well as all the others that I mentioned. I will let you hear from the office to leave you enough time for rebuttal. Thank you. Mr. Walsh. It blows the court. When a party starts selling goods in market on the associate, a trademark or a brand name with those goods, they create trademark rights that are created by the use. The rights they create and on how they use in market, party themselves watches, acquires trademark rights associating that mark with watches, not necessarily acquiring any rights with that Mark Associated with Scientific Recording Instruments. Over time. But the word chronograph is used. It's a fancy word for a fancy watch, isn't it? There's nothing to do with scientific instruments. What's your view of Mr. Walsh's point that this is a usage that has not caused anybody any problem for decades and has been relied on by registrants in the watch business for years and just all of a sudden some sort of munkering is being thrown into this nomenclature. Two things, one might suspect that there aren't any registrations for chronographs that say for use as watches, but in fact there are over 400 that use exactly that language. One might suspect that there aren't any registrations that use chronographs for use as specialized recording apparatus, but in fact there are hundreds of them. So you're saying inconsistency is widespread. No, I'm saying that in fact the practice is not to just simply use the word chronographs. But do they not have registrations that just use the word chronograph? There are some. So are those at risk? Could somebody challenge those and say well, chronograph is not sufficiently descriptive of the goods. Therefore your trademark for such and such for the class of goods chronograph is inbound. It's doubtful what that's going to happen because the person who has the rights has the rights associated with the use they've been making. The registration is a registration of that mark. The registration doesn't give them any trade mock rights. Whatever their rights are, they in here and their use. And the second part of my antitutional human's question is that over time markets develop, markets remafond, they branch out. Let's imagine that 40 years ago perhaps IBM registered a mark for software. And nowadays people register marks for software for designing buildings, software for games, software for electric circuits. All more specific because that market has been probably created in a more than 50 years ago. But they couldn't use the IBM mark. Whatever qualifications they might be among different kinds of software they couldn't use the mark. And even when IBM applies now for new registrations, it also specifies the goods more specifically. So the old marks are not in danger when a market spreads out and creates new products, all of which might fall under the heading like chronographs but be completely different things. And the only thing with that situation, there's no change in the market. I mean they're saying that the word chronographs was used to mean watch earlier in earlier registrations that the word chronograph has been used to mean watch for generations. And they're worried that those trade marks are going to be held in Val. I'm not sure what your answer is to that. I mean do they have a real risk or don't they? I don't think they have any real risk that argument wasn't raised because because their rights in the mark have to do with how they were using it. And their registration is not endangered if they registered something 40 years ago and they're still using it that way. When they apply for a new registration, what they're asking is what we're asking is that they identify the goods more consistently. And for example, in the the knees classification I just mentioned. And I noticed at the very end of the board's opinion, the board says we consider the officers position that chronographs per se is an indefinite term to be correct. What does that holding? I take it that's the holding of the board in this case. What does that do to all these other registrations? They all now contain an indefinite term, right? Well, I don't think it's going to hurt those registrations or the parties who have them in their lives. It's going to hurt. I'm going forward since 1993 when the knees classifications were modified to indicate that from the right. Let me ask you a different question. Suppose if we were to affirm this decision, a competitor of this company comes in and says to the board, it's now been determined that their registration contains an indefinite term. And since the registration is no longer be changed, we ask you to declare that registration invalid, at least as applied to chronographs. What does the office do? Would you permit it to be, can you change these old registrations to add the qualification that was added? The new general would require this registration. Well, I'm not exactly sure if they can change them outside of the time when they're renewing the registration. When they're renewing, they can limit the goods to more narrowly, say, chronographs for use as watches. I'm not sure if there are other provisions to do that. But I'm also not aware of any case where someone's registration has fallen because it used the term that was acceptable at the time. The term chronographs was recognized in 1993 as being ambiguous in the NIS classification. We've discussed this issue in our brief where even the NIS classification says the chronograph term is ambiguous and wants to clarify the brackets of the word watches or with brackets the word recording apparatus. So those kinds of developments don't necessarily undermine the registrations that people have had before. I should say take that risk when you say don't necessarily. I hear a lot of hedging in what you tell us, but I think you must hedge because it hasn't been litigated. I'm not aware of that. Omega doesn't want to be a test case with a valuable trademark to find that they're going to lose all their old valuable trademarks because they've got the word chronographed. Well, first I don't think they're modifying the goods in this application. Does anything to undermine a separate registration? Is this a legal commitment on the part of the office or is this your personal opinion? Apparently Mr. Wagner on behalf of his client is concerned. There are no this is this individual application as it stands can easily say chronographs to use as watches and it doesn't hurt at all any of the prior registrations where they have chronographs where their goods will watch at the same time. Am I correct in my understanding that under this decision if this decision is affirmed what happens is they have a choice. They can either amend the application as the examining attorney requested or they can go ahead with the application without the word chronograph. Basically the effect of the decision of the examiner saying you have to make this change and their refusal would change it is as though the word chronograph was struck from the application. The application will go forward but it will not include chronographs. That would be they could file a second application if this were affirmed they could file an application and just not use the word. If this decision were affirmed yes they would have to file a new application without the word chronograph. Or with the call of the case. Could they now request amendment of all the other applications to make the same change? I'm not sure if the answer to that. I think they would... Well if you can't answer it. Yes, don't try. Except we're told that you can't amend. I think you can amend the goods and again we haven't breathed that issue when that if we can address that in the supplemental briefing. You could do that perhaps. It would be helpful that the consequences of this decision are father reaching that I think was apparent from the briefing. I think it would indeed be helpful if both of you could pursue these issues that seem so uncertain and exchange your briefs before you filed them with us. So that you can argue with each other if that's required. And let's see how much time would be appropriate. These are big issues perhaps. Can we wait a month? Sure. I'm giving... Yeah. That's a judge I said we should have a page limit also. Okay, a month and ten pages. Thank you. And perhaps that will get us through to the next stage. We may or may not ask you to come back for further argument. Depending on how clear it seems at the time. If the office meanwhile can work it out internally, we might all be very pleased with that. Thank you, Your Honor. Is there anything else that needs to be said? You don't need to tell us anything else at this stage I think. All right. Then the case is not under submission. We will wait to hear from you and we'll see what happens next